Supreme Court and High Courts Weekly Round-up

This weekly round-up analytically summarises the key stories related to the Supreme Court and High Court reported at Taxscan.in during the previous week from January 15 to January 21, 2023.

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GST Evasion: Rajasthan HC grants bail to Gaurav Kakkar in ITC Fraud case- Gaurav Kakkar vs Directorate General of GSTIntelligence-2023 TAXSCAN (HC) 193

The Rajasthan High Court has granted bail to Gaurav Kakkar, the petitioner accused of creating fake firms for availing and passing of ineligible Input Tax Credit (ITC) and embezzling funds to a tune of Rs 19.65 crores. The Bench noted that “taking into consideration the investigation and evidence so collected, the trial will take considerable time and it may happen, if denied bail, the judicial custody be prolonged beyond the statutory period of punishment which is for five years.”

“Action on the Part of a Constituent of State has to be with responsibility and not Caprice”: Bombay HC Quashes Service Tax Demand on Ground of 7 Years Delay-CMA-CGM Agencies (India) Pvt. Ltd vs The Union of India Ministry of Finance-2023 TAXSCAN (HC) 194

Bombay High Court bench of Justice Abhay Ahuja and Justice Nitin Jamadar quashed and set aside the service tax show cause demand notice on the grounds of 7 years delay. The bench observed in Parley International Ltd. vs. Union of India has observed that proceedings should be concluded within a reasonable period and proceedings that are not concluded within a reasonable period, which the Court on the facts of each case has to consider, may not be allowed to proceed further. The HC opined that the action on the part of a constituent of State has to be with responsibility and not caprice.

Violation of Natural Justice Principles: Patna HC restores GST Registration - Manoj Kumar Sah vs State of Bihar-2023 TAXSCAN (HC) 192

The Patna High Court restored GST Registration of the petitioner, Manoj Kumar Sah on the ground that there was gross violation of natural justice principles on the order cancelling the GST Registration. The Court noted that the Joint Commissioner of State Taxes order is revoked, the petitioner’s registration is reinstated, and the State of Bihar is further instructed to complete the petitioner’s assessment and/or issue the necessary orders in accordance with the law.

Benefit under SVLDRS Scheme cannot be denied on Departmental decision to File Appeal: Jharkhand HC - M/s Om Prakash Kashyap vs The Union of India -2023 TAXSCAN (HC) 191

The Jharkhand High Court has held that the benefit under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SLV DRS scheme), cannot be denied by the Designated Committee on the sole basis of Departmental decision to file an appeal against the order. The division bench of Acting Chief Justice Aparesh Kumar Singh and Justice Deepak Roshan observed that “the Designated Committee travelled beyond the purview of the Scheme and acted in a wholly illegally and arbitrary manner by denying the benefit of the Scheme to the petitioner. It appears that the benefit of Scheme has been extended from 31 December, 2019 to 15th January, 2020, vide Notification dated 31″ December, 2019, issued by Central Government. ``

Second notice issued u/s 148 of Income Tax Act without disposing return filed to first notice is not valid: Calcutta HC- MESSRS ELITE PHARMACEUTICALS AND ANR vs INCOME TAX OFFICER-2023 TAXSCAN (HC) 190

The Calcutta High Court(HC)held that the second notice issued u/s 148 of the Income Tax Act without disposing of the return filed to the first notice is not valid. A Single member consists of Justice Md. Nizamuddin observed that the respondent assessing officer concerned was not justified in law in issuing impugned second notices under Section 148 of the Income Tax Act, 1961, relating to the same assessment years instead of completing the assessment on returns filed in response to the first notices under Section 148 of the Act.

Approval from non-authorised authority u/s 151(ii) invalidates the reopening: Calcutta HC - K K Agarwal and Sons HUF vs Income Tax Officer-2023 TAXSCAN (HC) 189

The Calcutta High Court (HC) held that the approval from the non-authorised authority under section 151(ii) of the Income Tax Act,1961 invalidates the reopening. A Single member consists of Justice Md. Nizamuddin observed that quashing the impugned notice and subsequent proceedings will not be a bar on the part of the Income Tax authorities concerned to initiate any fresh proceeding in future by the law.

High Court can’t answer classification of products under Customs Tariff Act as it requires Technical Analysis: Calcutta HC-2023 TAXSCAN (HC) 188

The Calcutta High Court(HC)held that High Court can’t answer the classification of products under the Customs Tariff Act as it requires Technical Analysis by technical experts. It was observed that only scientific and technical expertise can give any opinion as to the nature of the material used and method of manufacturing involved in the production of the articles in question and after taking into consideration the aforesaid scientific and technical aspect, appropriate Authority under the law can conclude and make a declaration as to under which heading of the classification list product in question will fall.

Court’s Interference in Each and Every Case would Defeat the Purpose of S. 148A(d) of Income Tax Act: Calcutta HC- DEBRAJ DEALERS PRIVATE LIMITED vs UNION OF INDIA AND ORS-2023 TAXSCAN (HC) 187

The Calcutta High Court in a recent ruling while dismissing the writ petition filed by the assessee held that the court’s interference in each and every case would defeat the purpose of Section 148A(d) of the Income Tax Act 1961.The Single bench of MD. Nizamuddin held that the Writ Court should not exercise the writ jurisdiction to substitute the findings of an assessing officer. The bench also observed that the assessment order was not final and the petitioner had the option to drop the order after issuing notice under Section 148 of Income Tax Act 1961

Complainant does not have Financial Capacity: Supreme Court acquits S.138 NI Act accused based on ITRs of Complainant- RAJARAM vs MARUTHACHALAM -2023 TAXSCAN (SC) 110

A two-judge bench of the Supreme Court recently disposed a 10-year-old case, wherein conviction of the accused for dishonour of cheque as per Section 138 of the Negotiable Instruments Act, 1881 was set aside as the Income Tax Returns (ITRs) of the Complainant show that he was not in a financial situation to lend money. Observing that the Income Tax Returns do satisfy the test of “preponderance of probability”, the Supreme Court granted an acquittal to the accused, setting aside the High Court’s decree.

Order u/s 148A(D) of Income Tax Act Is Not a Final Assessment Order: Calcutta HC dismisses Writ Petition–LAKSHYA VINTRADE PRIVATE LIMITED vs UNION OF INDIA AND ORS- 2023 TAXSCAN (HC) 186

In a recent ruling the Calcutta High Court has dismissed the writ petition holding that the writ jurisdiction could not be invoked as the order under Section 148A(D) of the Income Tax Act 1961 was not a final assessment order. The bench of MD. Nizamuddin observed that the court had no jurisdiction to substitute findings and reasoning of the assessing Authority as it had been passed by observing principles of natural justice and by not committing any procedural irregularity or in contravention of any statutory provision or was without jurisdiction.

Hiring of Helicopters covered u/s 2(g) (iv) CST Act: Delhi HC issues notice to CTT- M/S PAWAN HANS LIMITED vs COMMISSIONER OF TRADE AND TAXES - 2023 TAXSCAN (HC) 183

The Delhi High court recently issued notice to the Commissioner of Trade and Taxes in a civil Application filed by the M/S Pawan Hans Limited. The appeal was filed by the appellant to seek whether the hiring of helicopters to their customers in terms of agreement executed is covered under Section 2(g) (iv) Central Sales Tax Act 1956?

CSR Expenditure Deductible u/s 37(1) of Income Tax Act: Delhi HC– PR. COMMISSIONER OF INCOME TAX vs M/S STEEL AUTHORITY OF INDIA LTD - 2023 TAXSCAN (HC) 182

The Delhi High Court has held that the Corporate Social Responsibility (CSR) could be deducted under Section 37(1) of the Income Tax Act 1961.The division bench of Rajiv Shakder and Tara Vitasta Ganju allowed the CSR expenses as deductible expenditure under S. 37(1) of the Act and held that explanation 2 inserted in Section 37(1) was prospective in nature and therefore not applicable in the assessment years in issue. The bench accordingly allowed deduction of CSR expenditure under Section 37 of Income Tax Act 1961.

CBDT Circular Prescribing Limitation to Decide Application for Compounding of Offence Violative of S. 279(2) of Income Tax Act: Bombay HC- footcandles Film Pvt. Ltd vs Income Tax Officer – TDS – 1-2023 TAXSCAN (HC) 185

The Bombay Bench of High Court has held that the Central Board of Direct Tax (CBDT) circular prescribing limitation to decide application for compounding of offence would be violative of Section 279(2) of the Income Tax Act. The Bombay High Court Bench of Valmiki Sa Menezes and Diraj Sing Thakur held that the application for compounding of offence, under Section 279 of the Income Tax Act 1961, was filed beyond twelve months, as prescribed under the CBDT Guidelines dated 14th June 2019, were contrary to the provisions of sub-section (2) of Section 279.

GST Evasion: Rajasthan HC grants Bail to Accused- Vikas Bajoria vs Union Of India-2023 TAXSCAN (HC) 184

Jaipur Bench of Rajasthan High Court has recently granted bail to GST evaded accused on deposit of Rupees One lakh. Contended that the alleged tax evasion amount has already been deposited by the recipient. He has been in custody since 08.11.2022, and the offences in the charge sheet are compoundable; the maximum sentence awardable is five years.

Relief to Paytm: Allahabad HC stays ₹1081 Cr. GST Demand Paytm v CBDT

The Allahabad High Court has recently stayed the GST Demand, granting an interim relief to Paytm (One97 Communications Limited) from the liability to furnish ₹1081 Crore in relation to the supply of DTH Recharge Vouchers and Mobile Recharge Coupons. It was observed that, “In view of the fact that the amount of tax due on the transaction has already been paid and only dispute is whether it is to be treated as intra-State sale or inter-State sale, recovery of the demand raised vide order dated December 3, 2022 shall remain stayed till the next date of hearing”.

Indo-UAE Treaty does Not Deal with FTS: Delhi HC directs Income Tax Department to Issue Tax Certificate- WTS ENERGY DMCC vs DEPUTY COMMISSIONER OF INCOME TAX-2023 TAXSCAN (HC) 181

The Income Tax Department was ordered to Issue tax certificate by the Delhi High Court (HC) bench of Justices Rajiv Shakdher and Tara Vitasta Ganju after ruling that the Indo-UAE treaty does not mention Fees for Technical Services (FTS).The Writ Petition (WP) was filed to seek direction for issuance of a certificate under Section 197 of the Income Tax Act, 1961.The bench observed that the petitioner, who is a non-resident and does not have a Permanent Establishment (PE) in India, claims that the subject income is “business income”.

Relief to Amazon: Delhi HC dismisses Appeal Against Customs Advance Ruling Allowing Benefit on Import of Fire TV Sticks- COMMISSIONER OF CUSTOMS (IMPORT) AIR CARGO COMPLEX NEW DELHI vs AMAZON SELLER SERVICES PVT LTD -2023 TAXSCAN (HC) 180

Delhi High Court (HC) division bench of Justice Vibhu Bakhru and Justice Amit Mahajan granted relief to Amazon Seller by dismissing the appeal against the order of Customs Authority for Advance Ruling (CAAR) which allowed benefit on Import of Fire TV sticks. The Court decided that it has no jurisdiction to entertain an appeal against the ruling of the CAAR as it was filed beyond the further period of thirty days, which can be condoned in case appeal is filed after sixty days of the communication of the said ruling.

Govt. Servants can also apply for All India Bar Examination: Delhi HC allows Provisional Enrolment- SANDEEP vs UNION OF INDIA & ORS.-2023 TAXSCAN (HC) 179

A Single Bench of the Delhi High Court has recently allowed the provisional Bar Council enrolment of Sandeep, a Senior Assistant in the Delhi Jal Board. It was held that provisional enrolment cannot be denied on the sole basis that the applicant is an employee. The Single Bench of Justice Prathiba M Singh further observed that, “the BCI ought to encourage lawyers, who have qualified the LLB examination, to appear in the All-India Bar Examination, while having the flexibility to either practise or keep their enrolment under suspension.”

Writ Jurisdiction cannot be Invoked in Cases where Full-fledged Investigations are Required: Calcutta HC- Accord Capital Markets Private Limited vs Income Tax Officer-2023 TAXSCAN (HC) 178

In a recent ruling, the Calcutta High Court has held that the writ jurisdiction cannot be invoked in cases where full-fledged investigation is required. The Single bench clarified that writ petition shall be filed in cases where impugned order has been passed without jurisdiction or there is violation of any principle of natural justice or there is any procedural irregularity or the impugned order has been passed in clear violation of any statutory provision of the statute.

Income Tax Deduction u/s 80IA (4) Available Without Certificate from Concerned Port: Bombay HC- Principal Commissioner of Income vs Maharashtra State Warehousing Corporation-2023 TAXSCAN (HC) 177

Justice Kamal Khata and Justice Dhiraj Singh Thakur of Bombay High Court decided that Income Tax deduction under section 80IA (4) is available without a certificate from the concerned port. The Tribunal, allowed the appeal of the assessee by placing reliance upon the judgement in the case of Assistant Commissioner of Income-tax Vs. JWC Logistics Park P. Ltd. The bench referred the case Continental Warehousing Corporation and held that there is no substantial question of law. Thus, the bench unanimously dismissed the appeal submitted by the department.

No Eviction of Co-Owner of Joint Property under Rule 5(5) of PMLA when Appeal is Pending: Delhi HC- SANJAY JAIN vs DIRECTORATE OF ENFORCEMENT-2023 TAXSCAN (HC) 176

The Delhi High Court has quashed the eviction order of the co-owner of the joint property as the appeal was pending and the order was contrary to the rule 5(5) of the Prevention of Money Laundering rules 2013 (PMLA rules).The Delhi Bench of justice Prabhitha Singh held that the notice served to petitioner was contrary to Rule 5(3) and Rule 5 (5) of the Prevention of Money Laundering Rules 2013 Rules (‘PMLA rules’) and Petitioner’s family and occupants of the premises could not be dispossessed or evicted until the Appellate Tribunal had heard and passed the orders in respect of the impugned notices or the appeal filed by Pankaj Jain.

No Re-Assessment without new Tangible Material: Bombay HC- Clear Media (India) Private Limited vs Deputy Commissioner of Income-tax-2023 TAXSCAN (HC) 175

Bombay High Court (HC) chaired by Justice Valmiki SA Menezes and Justice Dhiraj Singh Thakur decided that without new tangible material there shall be no re-assessment. The division bench highlighted the case Jindal Photo Films Ltd. Vs. Deputy Commissioner of Income Tax where it stated that “a case of mere change of opinion which does not provide jurisdiction to the Assessing Officer to initiate proceedings under Section 147 of the Act.”

No Loss of Revenue: Madras HC quashes Charge Memo against Former VAT Officer- M. Baskar vs Commissioner of Commercial Taxes-2023 TAXSCAN (HC) 173

The Madras High Court quashes charge memo against former VAT officer on the ground that there is no loss of revenue to the department. The counsel for the Petitioner, P. Vijendran contented that the respondent did not suffer any revenue loss and the petitioner is acted only with his official capacity moreover the assessee who already paid the outstanding dues as per the assessment carried out by the petitioner. Madras bench of Justice Abdul Quddhose allowed the writ petition and quashed charge memo against the petitioner.

Incorrect Reflection of Suspension of GSTN Registration on Portal Might be “Technical Error”: Delhi HC directs Dept to Fix Issue and Process Refund- ANUJ GUPTA (PROPRIETOR OF M/S QUALITY AUTO EXPORT) vs COMMISSIONER OF GST, DELHI NORTH AND ORS-2023 TAXSCAN (HC) 174

In an assessee-friendly ruling, the Delhi High Court has observed that the incorrect reflection that GSTN registration is suspended, might be a technical error on the GST portal and the department cannot withhold the GST refund in such cases. Justice Vibhu Bakhru and Justice Amit Mahajan directed the GST department to examine whether the form GSTR 2A, as visible at the petitioner’s end, reflects all relevant details. “If it does, it would be apparent that there is a technical error in the respondents’ system,” the High Court said.

Late Fee for Delayed filing of TDS u/s 234E of Income Tax Act Not Leviable for Year 2012-13: Kerala HC- ALAPATT FASHION JEWELLERY vs INCOME TAX OFFICER-2023 TAXSCAN (HC) 172

In a recent ruling, the Kerala High Court ruled that the late fee for delayed filing of TDS under section 234 of the Income Tax Act, 1961 cannot be levied for the year 2012-13 as the amended provision is prospective in nature with effect from 01.06.2015., Justice Gopinath P observed that “Having regard to the aforesaid submissions and being in full agreement with the view taken by this Court in W.P. (C.) No.1259 of 2022, this writ petition is allowed. Exts.P1, P2 and P3 intimations are quashed to the extent, they demand fees under Section 234E of the Income Tax Act.”

Non execution of document: Bombay HC quashes order rejecting refund of stamp duty- Freedom City Ventures vs State of Maharashtra-2023 TAXSCAN (HC) 170

A Single Bench of the Bombay High Court quashed the order rejecting refund of stamp duty as being barred by limitation on the ground of non-execution of document under consideration. In this case that the stamp duty of an amount of Rs. 40 lakhs have been purchased by the Petitioner, which has not been used as the development agreement was not executed in view of the five co-owners refusing to execute the same. The Bench of Justice Abhay Ahuja observed that “In the circumstances, holding the application for refund of stamp duty to be time barred requires to be set aside.”

GST Exemption Allowable to Leasing out of Residential Premises as Hostel: Karnataka HC Quashes AAAR Ruling- TAGHAR VASUDEVA AMBRISH vs APPELLATE AUTHORITY FOR ADVANCE RULING-2023 TAXSCAN (HC) 169

In a recent ruling the Bombay High Court quashed notice for re assessment issued after six years without approval of the Principal Chief Commissioner of Income-tax (PCIT). the High Court held that the service provided by the petitioner i.e., leasing out residential premises as hostel to students and working professionals is covered under Entry 13 of Notification No.9/2017 dated 28.09.2017 namely ‘Services by way of renting of residential dwelling for use as residence’ issued under the Act.

Bombay HC quashes notice for re assessment issued after six years without approval of PCIT- MA Multi-Infra Development Pvt. Ltd vs The Assistant Commissioner of Income-tax-2023 TAXSCAN (HC) 169

In a recent ruling the Bombay High Court quashed notice for re assessment issued after six years without approval of the Principal Chief Commissioner of Income-tax (PCIT). A Bench comprising Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that “We accordingly hold that the approval for issuance of notice under Section 148 ought not have been obtained from the Additional Commissioner of Income Tax but from the authority specifically mentioned under Section 151(ii) of the Act.”

Search, seizure and seizing of cash, and jewellery by ED without reason are contrary to the Section 17 of PMLA: Telangana HC- M/s. Musaddilal Gems and Jewels (India) Private Limited vs Union of India-2023 TAXSCAN (HC) 168

The Telangana High Court (HC) the search, seizure and seizing of cash, and jewellery by the Enforcement Department without reason are contrary to Section 17 of the Prevention of Money Laundering Act (PMLA), 2002.The respondents failed to provide the details of the date and time for the recording of the ‘reasons to believe as per Section17 (1) of PMLA, 2002 and also failed to provide the contents of the reasons further the respondents also failed to provide the dispatch details of the postal acknowledgement. While allowing the petition, the Court set aside the impugned order and the respondents are directed to release all the jewellery, cash and other articles seized.

Satisfactory discharge of burden of proving genuineness of transactions: Bombay HC confirms deletion of disallowance u/s 69C- Principal Commissioner of Income Tax vs Mr. Sanjay Dhokad-2023 TAXSCAN (HC) 167

The Bombay High Court confirmed deletion of disallowance under Section 69C of the Income Tax Act, 1961 on satisfactory discharge of burden of proving genuineness of transactions. The respondent in the present matter is Sanjay Dhokad. The Coram comprising Justice Dhiraj Singh Thakur and Justice Valmiki Sa Menezes observed that the respondent had satisfactorily discharged the initial burden of proving the genuineness of the transactions.”

Madhya Pradesh HC Dismisses Writ Petition When Statutory Remedy available-M/S RAMA PHOSPHATE LIMITED vs JOINT DIRECTOR-2023 TAXSCAN (HC) 166

In a recent decision, the Madhya Pradesh High Court (HC) dismissed the writ petition when a statutory Remedy was available. Rama Phosphates Limited, the petitioner sought to quash the order number passed by the Additional Commissioner.

“When the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties” the court observing this dismissed the petition.

Mistake of filing Form-B2B instead of B2C: Orissa HC Allows Correction in GSTR-1 to get ITC-M/s. Shiva Jyoti Construction vs The Chairperson, Central Board of Excise & Customs and others -2023 TAXSCAN (HC) 165

A division bench of the Orissa High Court has pronounced an assessee-friendly ruling wherein the Court allowed the assessee to correct GSTR-1 in order to get the Input Tax Credit (ITC) as there was a Bonafede mistake of filing of Form-B2B instead of B2CThe Petitioner, Shiva Jyoti Construction approached the Court seeking a direction to the department to permit the Petitioner to rectify the GST Return filed which was wrongly filed. The bench observed that,’ if it is not permitted, then the Petitioner will unnecessarily be prejudiced.”

Persons Other than Searched Person liable to Pay Interest on Late filing of ITR u/s 158BC Even Without Notice: Supreme Court- K.L. Swamy vs Commissioner of Income Tax & Anr-2023 TAXSCAN (SC) 109

In a significant ruling, a two-judge bench of the Supreme Court has held that the persons other than the searched persons shall be liable to pay interest for late filing of income tax return under section 158BC of the Income Tax Act, 1961.The appellant is an individual and Director Partner in Khoday Group of Company concerns. Search was conducted in a residential premises of Khoday Group. The appellant was served with the notice under Section 158BD to file the return of income in which he had filed return and the interest was levied on him for late filing.

Consideration for Advisory Services does not amount to FTS under Indo-US Treaty, Not Taxable: Calcutta HC- COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION & TRANSFER PRICING) vs M/S. THE TIMKEN COMPANY-2023 TAXSCAN (HC) 162

The Calcutta High Court (HC) held that consideration for advisory services does not amount to FTS and cannot be treated as Fees for Included Services under Article 12(4)(b) of the India-US Double Taxation Avoidance Agreement (DTAA). The Court thus upheld the ITAT’s order setting aside the additions made to the foreign assessee Company’s income for the compensation received by it for rendering advisory services to its Indian subsidiary. It was found that the agreement is purely advisory services and such advisory services cannot be treated as fees for included services under Article 12(4)(b) of the Indo-US Treaty since there is no technology which is made available.

Ex-Partee Order for GST Demand without granting Personal Hearing: Gujarat HC quashes Proceedings, Directs to Issue Physical Notice- M/S EAGLE FIBRES LIMITED vs STATE OF GUJARAT-2023 TAXSCAN (HC) 164

In an order favouring assessee, a division bench of the Gujarat High Court has quashed an order raising GST demand without granting personal hearing to the assessee and directed the department to issue a physical notice apart from the notice reflected on the GST portal. The personal hearing had not been granted in the instant case nor hard copy of the show cause notice was served upon the petitioner. The court held that the notice had been served only through portal and thus directed the service to be also affected physically through RPAD and pass order after affording the reasonable opportunity,

Setback to Oriental Insurance Company: Calcutta HC upholds MACT Compensation Assessment after Statutory Deduction of ITR- The Oriental Insurance Company Limited vs Rupa Agarwal & Ors. -2023 TAXSCAN (HC) 163

In a major setback to the Oriental Insurance Company Limited, the appellant, a Single Bench of the Calcutta High Court upheld Motor Accidents Claims Tribunal (MACT) compensation assessment after statutory deduction of Income Tax Return (ITR). The claim petition was filed, on account of death of Vinay Kumar Agarwal in a motor accident as pillion driver and his widow filed the petition in which the insurance company denied liability. The HC upheld the contention of the petitioner consider the income of the deceased in terms of Income Tax Return showing income of the deceased while he was alive.

Certificate from Port Authority is mandatory to avail Deduction u/s 80IA (4) Income Tax: Bombay HC-Maharashtra State Warehousing Corporation, Vs Principal Commissioner of Income Tax-6-2023 TAXSCAN (HC) 161

The Bombay High Court (HC) held that certificate from Port Authority is mandatory to avail of deduction under section 80IA(4) of the Income Tax Act,1961.The revenue department challenged the order passed by the Income Tax Appellate Tribunal (ITAT),whereby it was held that Maharashtra State Warehousing Corporation, the assessee was eligible for deduction claimed under section 80IA(4) of the Income Tax Act, The Assessing Officer, however, denied the benefit on the ground that the assessee had failed to furnish a certificate from the concerned Port Authority certifying that the structure was a part of the Port, which it considered mandatory in view of the Board’s notification

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